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All right. Um, I think everyone is filtering in. So, um, I wanna say welcome and thank you so much for joining us as folks are coming in from the waiting room. Um, This is of course the latest event in our Biddle Speaker series offered in partnership

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with the Society for Academic Law Librarians. My name is Genevieve Tang. I'll be your host for today's session. If you've joined us before, you know that the Speaker Series exists to showcase emerging and impactful scholarship on all aspects of law libraries and legal information, and it's

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my pleasure to introduce our speakers for today, Claire Willis and Steven Mitchell. So we're here today to learn more about Clare and Stevens' new paper in progress, which is called Teaching Historical Research for Practice, and this truly could not be more timely. I think a lot

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of us in the room have probably been following along with how legal history research in particular has been fuel for a lot of heated contemporary debates among scholars, particularly with respect to theories around, for example, the birthright citizenship. Arguments in Trump v. Barbara. I happen to

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have a selfish reason for wanting to advocate for this because I've got students coming in for a consultation next week to talk about Bruins step 2 analysis. So I am so selfishly grateful that we scheduled this for today. Unfortunately for all of us, Claire and Steven

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have great expertise in this area. Claire has been with Northwestern since 2016, and she currently serves as the research and instructional Services librarian and the coordinator of educational outreach for the Pritzker Legal Research Center. There's lots I could say here about both of our folks. Her

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teaching methods, excuse me, her teaching portfolio includes advanced legal research and a course on advanced legal research for historical methods. Stephen is also a teaching expert in this area, a lecturer in legal research at Yale Law School, and a research and instructional librarian at the Lillian

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Goldman Law Library, where he also stewards the foreign and international legal materials collection. And he also teaches foundational and advanced legal research courses, including a course on history and language research in legal practice, which is very exciting to have folks who are in the mix on

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this leading the way. Thank you both so much for being here. On a logistical note, throughout today's talk, please feel free to add your questions to the Q&A. I'm going to be monitoring those and the chat as we proceed, and we're going to take all questions

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at the end as to allow our speakers to focus on their remarks. We'll have time for them to address all your questions at the end of the session. So thank you again for joining us, and I'm going to mute myself and turn it over to Steven

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and Claire. Wonderful. Thank you so much, Genevieve. Uh, I wanna start quickly by talking about our agenda for today. Uh, the agenda is to start with an introduction and context to how these courses came to be, uh, and what kind of need were we trying to

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meet here. We also want to talk about how we identified our learning goals, how we selected our texts and our reading. And also how we designed assessments to see whether or not students met the learning goals. We'll end with some lessons learned and adjustments that we've

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made to our courses, and of course, as Genevieve said, time for questions. So let me start with the context for how these courses came to be. The courses that Stephen and I teach seek to address a gap between the evidence that courts are looking for and

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what is taught in law school. Olivia Smith Schlink identified this gap when she wrote the post that I have a screenshot for here in the Ripsis blog back in 2022. This slide contains a link to the article and we'll be sharing the slides afterward. Olivia wrote

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that the Supreme Court jurisprudence, which increasingly asks litigants to find historical evidence to support a law, means that we are all historical researchers. But just because the Supreme Court wants to see this evidence doesn't mean that lawyers know how to find it. Olivia wrote her article

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after the court decided Dobbs versus Jackson Women's Health, overturning Roe versus Wade and allowing states to ban abortion. Justice Alito's opinion used historical evidence to conclude that there was an unbroken tradition prohibiting abortion on pain of criminal punishment persisting from the earliest days of the common

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law until 1973. Three other famous recent examples, one of which Genevieve will be talking about tomorrow, come from the context of Second Amendment challenges DC versus Heller, New York State Rifle and Pistol Association versus Bruin, and United States versus Rahimi. These cases ask those who sought

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to defend a restriction on guns to point to some evidence that a similar restriction existed around the time of the founding. The degree of similarity between the old law and the new law is contested. But finding that old law is now an established part of Second

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Amendment jurisprudence. Although the use of history and tradition evidence in the law is not new, the court's increased reliance on that evidence has been well documented and heavily debated. The aim of this presentation is not to question the wisdom of using this evidence, and, and neither

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is the course, really. I do have my students read criticism about the use of historical evidence, but it's not the focus. To the extent that our job as librarians is to find the raw material of legal argument and to teach others to do the same. This

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increased use of historical evidence creates an opportunity for librarian instruction because this evidence falls in a gap in the law school curriculum. History and tradition arguments are discussed in con law courses or courses on originalism, but those courses don't teach research. More broadly, legal history courses

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do not focus on research either. For research instruction, there are advanced legal research courses, but those don't teach history. Our courses bridge that gap. So, in that vein, uh, one of the things that we were looking to do in this course when um I had the

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idea in 2022 and when Claire um adapted for Northwestern was to address a general gap of interdisciplinarity. So the, uh, uh, the question that we were seeking to address. is we teach legal research, but we don't teach all the other areas that impact law. So, things

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like law and economics, law and psychology, law and sociology. So how can we approach a, uh, the design and development of a course and the instruction of a course, um, that Looks at these other areas that um students will be and practicing lawyers are increasingly more

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expected um to uh be competent in or to be able to address um within a litigation setting. Um, and right now, history, uh, or language, those are sort of the, the hot button issues at this point, but how can we address a course design that looks

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at Research within a law school outside of the standard sort of ambit of quote unquote legal research. So one way of approaching that is working outside of the ecosystem, ecosystem of Westlaw, Lexus, Hein, all of those. usual databases that get, that get addressed in a legal

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research course. How do we teach students to remember the things that they probably encountered in their undergraduate programs? How do we teach them how to incorporate that into a legal research, not just how to use, um, the database itself, the resource itself, but how to think

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about it critically as a way of incorporating that, those sources of information. Into a litigation setting. Um, and I, I, I'm sure we all have had instances where, um, students will come to The reference desk or we'll address a research and it's like, I couldn't find

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this information in Westlaw, I couldn't find this information in Lexus. Well, that's not where you should be looking. And so this was a way of uh incorporating that into a course that addresses something that is currently legally relevant as this uh particular branch of uh historical

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jurisprudence is developing, but also give them the skills so that when they Um, if they should be in something that isn't maybe so quite, uh, constitutionally, historically relevant, that they're still able to, um, approach and have a, have an understanding of how can I start to

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address this problem? How can I build in Um, whether it's economic research or medical research, how can I bring that in, um, my legal research that I'm being tasked with in, um, this particular practice situation? How can I bring that into the practice context? Um, so

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this leads then to Given the gap that we saw both um in the particular instance of uh history and the gap more generally with um interdisciplinary research and reaching beyond all of these normal databases that the uh law students are more accustomed to, um, this then

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led to how do I, what are the learning goals that we're going to want to Incorporate into the course. One of the big things that um you may have um See, uh maybe. Yourself concluded from this is one of the things that we are looking for

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is to foreground um what um is known and, you know, the field of libraries as information literacy and particularly, um, I used uh Dennis Kim Prieto's uh paper on that adapted the ALA standards of information literacy to, uh, this idea of legal information literacy, and I

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wanted to Get the students to think in an advanced way. So this would be an advanced course, of course, um, in an advanced way about what is the information that they're encountering and how is that relevant towards their own legal research. So he identifies A number

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of different, uh, uh, again, is adapting the ALA's definition of identifying the types of sources, accessing, knowing how to access those sources, knowing how to evaluate those sources, knowing how to apply those sources, and then particularly, especially in the, in the course of uh legal practice,

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knowing how to ethically and legally use those sources. Um. And so Particularly for um the courses I designed, it, these were the sorts of questions that I wanted to make sure that um the students came out of the course, maybe not having the perfect answer for

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these ideas, but having an approach to this and thinking about it in a way that again addressed those initial uh uh problems that we had seen. Um, of spreading the gap and branching across the gap of what are they not maybe getting in any of their

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other courses, um, Including even the intro of legal research courses. So, What atypical information do I want and why? And by atypical here I mean. Outside of those things that I can find just with like a a case law citation. What am I able to access

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that's available to me? That would get me that information. And one of the things that um this led to in my course was also helping them to understand once you leave law school, a lot of these things that we're gonna be talking about, you may not

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have access to, you probably will not have access to at your firm. So how do you, how do you branch that gap? How do you bridge across that gap and how do you Make use of area libraries. How do you make contacts with a local law

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school or a local public library to be able to access some of these things that your firm is not going to um be subscribers to? Evaluating. Once you've got that information, is this actually what I wanted? Does this match the thing that I initially uh was

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able to identify as the sort of information I wanted? And then the application is one that um sort of uh is sometimes more in the ambit of their doctrinal courses, um, but also is addressed in a research course of how do I actually apply this to

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the legal argument. You know, we, uh, uh, as Claire mentioned, we're not teaching a particular jurisprudential approach, but once you understand what the judge in front of you may be wanting to hear. How do I incorporate the information into that argument in a way that respects

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The actual nature of that resource, and this then comes into the ethical and legal use. So the most simple version of this is what gets called um uh law firm history of just finding your friends among the crowd, cherry-picking from amongst the history. That's in my

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mind, a non-ethical use of information in the same way that a misuse of case law would be a non-ethical use, but also it Creates a problem, um, and I'll talk about this later on, is what if your opposing counsel actually understands the, the source better than

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you do. And so that's one of the things that um I wanted to build into the course and I particularly in this current iteration have been emphasizing is regardless of whether you agree or not with the jurisprudence, what you're wanting to do is to be the

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one with the better legal argument and the one that's able to Make the argument in court throughout the litigation process of, I actually have the better information. They brought this information to you, but I understand it better and I can help you, the court, understand why

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that should be discounted or why it should be understood in a different way. Um, so that comes in, um, to the application and ethical and legal use elements of information literacy. I want to talk about how I adapted some of the ideas of learning goals um

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from the perspective of prioritizing the needs of practice over academia. And I think this depends on where your particular course fits in the curriculum. My course is designated as an experiential course. According to the ABA rules. An experiential course may be a simulation course which provides

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quote substantial experience not involving an actual client that is reasonably similar to the experience of a lawyer advising or representing a client or engaging in other lawyering tasks. So how can I say that this is a simulation? That requirement led me to focus on the needs

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of the practice of law instead of the needs of academia. I have a jack of diamonds on this slide because the learning goals remind me of the old insult or backhanded compliment that someone is a jack of all trades but a master of none. I would

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argue that a good lawyer is a jack of all trades and a master of one trade, the law. A lawyer often needs to know something about other professions or other areas of expertise. Steven mentioned this earlier in terms of interdisciplinarity, things like law and economics, um,

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but I, I want to, to offer a slightly more pedestrian example of this and, and say that um While a lawyer should not do your knee replacement surgery, a lawyer should be able to depose an orthopedic surgeon effectively. And part of that involves knowing what an

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orthopedic surgeon does and what kinds of information and evidence go into their decision making and how they form their opinions. And yes, this is done while consulting your own experts, but that doesn't allow an attorney to have her expert come in and depose the doctor, nor

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is the expert allowed to make legal determinations like whether certain treatments should be considered negligent. In that way, an attorney learns about other areas of expertise to find ways to fit that knowledge into a legal frame. So how does that fit with history? Continuing with that

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idea, I do not intend my course to train PhD historians or legal historians more generally. Professional historians research history differently from lawyers. Their audience and purpose is different. An academic historian will investigate history, find new information, and create new insights about history that they will communicate

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and defend to other professional historians. That academic conversation is incredibly important. At the same time, our expectation with these courses is that our students will become practicing lawyers and judges, and lawyers and judges are part of a different conversation. They are finding laws, interpreting them, and

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applying them as precedent in present day disputes. Lawyers also try to poke holes in the evidence and arguments presented by the other side's lawyers. And lawyers interact with expert witnesses at the trial level or experts who file amicus briefs in appellate litigation. Thus, it is realistic

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to think that an attorney helping her client challenge a restriction on firearms ownership will consult with an expert historian, read law and history scholarship on firearms ownership, and read cases that use history. With these professional realities in mind, I chose not to focus the course on

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performing original research. Rather, I emphasize finding known items, finding the historical context of those known items, and critiquing the use of those known items in legal argument. In that way, I hope a student who takes my class will become a jack of history and a master

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of law. We have the idea of what the Course should be, what we're looking to accomplish. So, how do we get there? How do, how do we actually design a course that gets from Where the student is at, as someone who has some understanding of legal

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research, um, some understanding of the law, and is now branching out into this new area. The first element that we wanted to talk about today is readings. Law school does readings. That's just an element of law school that for better or for worse, as much as

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law students may like or dislike it. They're accustomed to readings. So, giving the readings um was a no-brainer, at least for me. And there were a couple of things that I wanted to do as I decided upon readings. Um, one was To contextualize the non-legal information

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and the creation of of that information. So this means looking at Historical documents, looking at um the secondary literature as, as Claire mentioned, we're not looking for them to do extraordinary uh uh original research, but giving them some familiarity so that they can understand when you're

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looking at a historical. Uh, at, at a historical document, or when you're looking at, um, a secondary document that is a history written by a legal historian or written by a social historian. Um, what is it that led to the creation of this information? Cause that's

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then going to impact how can I use this? Cause again, you don't want to be caught. Using a piece of information that is inappropriate or that misunderstands how that information was created, or how it was intended to be used. The other element of the readings that

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um I decided upon um were supplements for that, um, uh, for the basic research qua research, research per se of Uh, being able to work with databases, being able to work with, uh, information sources. So this is, um, additional to the ways that they may have,

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um, encountered. Uh, information sources in their undergrad or through an introductory course in legal research, but something additional that helps them understand how to, how does the information world work. Um, so this, you know, I, I, I tried not to do too much with this, um,

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lest I get too much into the deep weeds of library and information science, but it is an important part and Um, actually, one of the things that, uh, better handles this, I think, um, in my course is, uh, one of the exercises that I, uh, uh,

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developed, um. But the other thing that I've been wanted to do is that information literacy, so class discussions that talk about um what it is that, how to, how to critically approach historical documents, um, how to critically approach any document, really. That is, is again, building

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that information literacy, which includes um have a few readings that are examples or studies of actual usage of this type of information in legal practice. Um, so, uh, uh. I have one in uh one of the early American uh classes that talks about, OK, how have

00:23:35.800 - 00:23:54.430

we actually used the Federalist Papers? How is that actually being used and understood by courts? How is it being rejected by courts? Should you still be using the Federalist Papers? Are there other things that you might use instead? Or if you're using the Federalist Papers, or

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an opposing party is using the Federalist Papers, how can you then use secondary literature that says maybe the Federalist Papers are not the best way of understanding, um, the, uh, the, the, the original meaning or the original intent, um, or even just understanding the legal text

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qua text, um. So looking at those sorts of things and trying to branch across all of these ideas of information literacy is, do you understand the information that you're getting, and do you understand how to access that? Um, the other thing that I did with my

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course is I have copious, and each time that I have taught the course, it has grown and grown and grown of, um, additional sources. And I, and I put like, I, I aim for 50 to 75 pages a week, um. Of actual assigned readings, but then

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additional sources of if you're interested in this topic more, whether it's the historical era that we're looking at or it's the um particular uh type of resource that we're looking at this week. He is more that you can read. Here is more that you can read

00:25:08.310 - 00:25:23.709

about this historical era. Here's more that you can read about how to do archival research or what archives are doing or what personal papers are beyond what we have time in class, um, to deal with. Um, and so I, I, I, I put this on the

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slide as a hybrid Oxbridge approach for those of you who are familiar with some of the ways that, um, Uh, Oxford and Cambridge address, uh, syllabi, it's everything. It's a dumpster, uh, drop of all the sorts of things that are, um, uh, leading sources on, uh,

00:25:45.290 - 00:26:04.380

this particular, uh, topic. Um, and I sort of, I, I try to Identify the particular items that I want them to definitely read this week and then say, and if this is of interest, go beyond that much more. There's a lot more to do. And then

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it's a reminder of students, um, which is a basic, uh, uh, research principle, follow the footnotes. Follow the footnotes, follow your citators, go beyond what I'm assigning because if this seems relevant for the things that you are interested, um, You gotta, you gotta follow the footnotes,

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and um, uh, I, I follow, uh, one of the uh um. Uh, illustrations or, uh, mantras that one of my law professors gave me in law school is, um, Understanding that mastery over a subject often means You can just read the footnotes and understand the argument,

00:26:50.560 - 00:27:10.079

because you have looked at all of the different, um, you, you understand the field of scholarship, and so, um, The footnotes are very often really where a lot of the hard work is being done, and that's where, um, you know, the, the, the above the line

00:27:10.079 - 00:27:27.469

is where the novel stuff, but the hard work is actually being done in the footnotes. Um, so I remind them of that, um, as they're doing the readings and as I'm incorporating both these assigned readings and all of these supplemental readings. Um, So, it, it an

00:27:27.469 - 00:27:49.800

example of some of the readings I've done, um, so from reliable Sources is one that's early on that I, uh, give as a way of understanding what it is that historians think that they're doing. Um, Jack Balkin's, uh, recent, is a recent book is another good

00:27:49.800 - 00:28:08.540

example of, OK, now, what is it that Legal scholars think that they are doing when they're using history and what are the diverse ways of incorporating history into legal scholarship or into legal practice. Uh, Gregory Maggs has a number of, uh, uh, He, he has a

00:28:08.540 - 00:28:30.140

series of publications that he put out about, uh, not quite an annotated bibliography, but something sort of adjacent to that of how, uh, things have been used by, uh, how historical documents have been used by courts, and then actually on the first week, I have them

00:28:30.140 - 00:28:56.810

read, uh, Vidal v. Elster and the conversation there that's happening in An actual courtroom in actual uh Uh, legal opinions at the Supreme Court level of what it means to incorporate, uh, legal, uh, or, or legal history, historical documents, historical understandings and interpretations into an actual,

00:28:56.849 - 00:29:19.510

uh, uh, court opinion, uh, that has real-world implications. So Steven was the pioneer in this area. His course came first by a couple of years, and I've been very, very lucky that he was very generous with his syllabus and with his time talking about the readings

00:29:19.510 - 00:29:34.650

that he had already. come up with. I took a lot of what he had for his course already and adapted it based on the needs of Northwestern students and my own personal interests. I think that's what others who want to teach courses like this should do.

00:29:35.589 - 00:29:54.599

First of all, Stephen and I both use John Nann and Morris Cohen's Yale Law School guide to Research in American legal history. As a textbook, and I cannot recommend it highly enough. The reason why I like it is because it does very well telling researchers what

00:29:54.599 - 00:30:14.609

database has what material, but it also gives just enough historical context and information about the legal culture that created the sources. So for example, Nan and Cohen explained the importance of Blackstone's commentaries in America when there were very few books published on this side of the

00:30:14.609 - 00:30:32.910

Atlantic. The authors then give several places where Blackstone is available and note that later editions that include US cases are available on Hain Online and Making of Modern Law Legal treatises. There are a lot of, you know, No offense to lib guides, but lib guides out

00:30:32.910 - 00:30:49.750

there that'll tell you, yeah, fine, it's on Hein Online, it's on Making of Modern Law, but to understand why Blackstone is really important, it's important to know that context. I keep a copy of Nan and Cohen's book on my desk at all times, and our library

00:30:49.750 - 00:31:09.859

got a license to the ebook version with unlimited, unlimited simultaneous users. It's worth it. I allowed my own personal interest and personal convictions to lead me to include more readings from general history and not necessarily legal history. First of all, I love history and I love

00:31:09.859 - 00:31:30.790

to see students learn history. In another life, I think I might have taught AP US history to high school students. Um, but building off of what Steven said about the, um, about information literacy and the ethical use of information. Um, my own personal convictions guided my

00:31:30.790 - 00:31:52.890

choice of readings in a small way as well, because I believe also that it's intellectually dishonest to cite historical evidence without understanding the context that created it. So hence my course included background reading in history. The background reading and history served two other purposes. First, it

00:31:52.890 - 00:32:10.130

put my students on level ground for their discussions in class and for their use of the evidence. I did have 3 students who had been history majors in undergrad, so they had a little bit of a leg up when it came to doing this kind of

00:32:10.130 - 00:32:28.569

research, but it wasn't much of an advantage for our course because they focused on Middle Eastern history, Latin American history, and American political history of the mid-twentieth century, but it was an advantage, and I didn't want my students to feel that their experience in the course

00:32:28.569 - 00:32:47.800

depended on what courses they took in undergrad and how well they remembered it. Similarly, two of my students received their primary and secondary education overseas, and they only learned the most basic United States history. So the background reading helped them feel more confident talking about US

00:32:47.800 - 00:33:03.410

history. With their peers who were born in the states. Although, as I told them, those who grew up in the US learn a fair number of myths and oversimplifications, and we could all stand to read a little bit more history no matter where we grew up.

00:33:04.439 - 00:33:21.640

As for where I found my readings, the best source for historical background readings, uh, besides Steven's syllabus was the further reading section at the end of each chapter in Nan and Cohen's book. Other times to come up with the readings, I kind of reverse engineered the

00:33:21.640 - 00:33:40.839

reading by starting by identifying a resource in the Nan and Cohen book that I wanted the students to be able to find and understand. I then searched journal and Law Review articles and Supreme Court and Circuit Court of Appeals cases to try to find places where

00:33:40.839 - 00:34:02.430

that resource was cited and discussed. So then the students would read that additional um Secondary source reading about the use of that historical evidence. They'd read a decision where that historical evidence was used. I'll talk about a specific example of this reverse engineered reading assignment later

00:34:02.430 - 00:34:23.678

in our presentation. Finally, you can amend what the course covers based on local needs and interests. I recognized a great interest in historical dictionaries at Northwestern. Typically, the first year legal writing problem and the schoolwide moot court competition involve plain meaning arguments and historical dictionary definitions.

00:34:24.029 - 00:34:50.429

So I chose to build on the students' experience by adding a class session devoted to historical dictionaries. So, speaking of exercises, one of the ones that I recently incorporated into uh this course in this most recent iteration that I'm currently teaching in the spring is one

00:34:50.429 - 00:35:17.080

that was uh adapted from colleagues that I've known over the years uh of a resource presentation. So, there is an essential problem when you in Come across, um, interdisciplinary and especially the historical, uh, approach is there are all too many dictionaries or databases rather. So, you

00:35:17.080 - 00:35:42.030

can go back to the original, uh, problem that was seeking to be addressed by the course of, it's not a one-stop shop. OK, it's not a one-stop shop, but we can't teach you how to shop at all the shops. But As an effort of increasing that

00:35:42.030 - 00:36:09.530

information literacy and giving students a, an assignment that forces them to really engage with an information source. Um, I've been using a resource presentation. Where they will have to um present to the rest of the class in a 10 to 12 minute presentation, a particular database.

00:36:10.719 - 00:36:33.909

So they investigate it, they spend. Probably the night before, investigating it, knowing students. They have to experiment with it, they have to present it, and they have um to Discuss with the class. What is this a good database for? And I, I have a menu of

00:36:33.909 - 00:36:50.409

30 different databases that they're able to select from, and early on this, in the semester, in the 1st or 2nd week, they have to sort of sign up for what we I'm going to present and what database from this menu I'm going to present on. And

00:36:50.409 - 00:37:10.389

this time around, I even coded it so that Well, you can't talk about a uh A British database when we're talking about 20th century. American history. So it's, it's all coded to what weeks they can do, so they get to choose what week and what database

00:37:10.389 - 00:37:30.719

within certain limitations. At that point though, they are having free reign to play around with the database, to find something that is of interest to them, to look at um. What the database contains. What's the content? What are the filters that are available? What are the

00:37:30.719 - 00:37:48.689

search terms that are available? What are the ways that you can encounter the information that the the that the database ostensibly contains. And so I have here, a couple of options. So, um, you know, we look at ProQuest History Vault, uh, the Gale 19th century US

00:37:48.689 - 00:38:13.110

newspapers, uh, AM's American History. These are all databases that have actually been presented this semester. Um, and it gives them Again, going back to that initial aim of information literacy, is it trains them and gets them familiar with the idea of how do I encounter information

00:38:13.110 - 00:38:28.679

that I'm not familiar with. When I have to move beyond what I'm familiar with, how do I identify where it is that I'm going to be able to look, and how do I identify how it is that I'm going to get that information out from the

00:38:28.679 - 00:38:48.389

information source. And it's a similar skill to what um we're all accustomed to teaching with. Westlaw and Lexus, not to mention books, is a book is A whole ton of different information. How do I find what I want out of this book? Cause chances are I'm

00:38:48.389 - 00:39:02.050

not gonna read the entire book in the same way that I'm not gonna read the entire database. So, how do I identify what book I'm going to find, what database I'm going to want to look in, and then extract the information that I'm looking for, because

00:39:02.100 - 00:39:25.790

as I talk in the uh the first week, time is money, and in legal practice, that is especially the case. So This, uh, exercise is designed to exercise all of those different skills that I'm wanting to get out of them, not just as they're looking at

00:39:25.790 - 00:39:45.409

interdisciplinary, but also just as a basic legal practice, um, skill is how do I identify where I'm going to find the information that I need. And, uh, uh, extract it in the best way possible. So, both the theory and the actual practice of it, they have

00:39:45.409 - 00:40:13.060

to go through that entire exercise, um. Yeah. So, I'd say that kind of the signature assessment that I came up with for my course were a set of quizzes. There were 5 of them in weeks 7 through 12, um, that they were weekly assignments, um, during

00:40:13.060 - 00:40:28.943

weeks where we explored the history, legal culture, and resulting legal document. Documents of different historical eras. When I told my husband about this plan, he started referring to it as the era's tour, and it, it kind of stuck. So each week we worked together on an

00:40:28.943 - 00:40:46.226

in-class workshop to find and understand legal documents. The workshops were structured as canvas quizzes with mostly multiple choice questions because I wanted To make the grading easier. And any work that was unfinished at the end of the class period was due later in the week. Out

00:40:46.226 - 00:41:03.169

of 5 quizzes, I dropped the two lowest scores. I think that I can probably better explain these quizzes if I give an example. So, this example is from week 8 when we studied the colonial period. The students had some readings to complete before class. They read

00:41:03.169 - 00:41:20.129

chapter 3 of the Nan and Cohen textbook to learn about the legal information created at the time and where to find the documents today. So one of the influential works that was discussed in the chapter was the practice manual Conductor Generalis. This work was popular in

00:41:20.129 - 00:41:38.120

America. It went through several editions in the 18th century at a time when there weren't many books published in America at all. The students also read an article by George C. Thomas III that was about um It, one of the things that it discussed in an

00:41:38.120 - 00:42:01.504

effort to talk about what um search incident to arrest was like before the founding of the United States, it talked about conductor Generalis, and Professor Thomas noted that Conductor Generalis endorsed the use of search incident to arrests, but only in one edition. And other colonial era

00:42:01.504 - 00:42:21.625

treatises didn't mention or endorse the practice. So finally they read an example of the use of that history in a real case, Justice Samuel Alito's opinion in Birchfield versus North Dakota. That was a case examining whether a warrantless breathalyzer or blood alcohol test was a proper

00:42:21.625 - 00:42:42.050

search incident to arrest. And in the particular part that they read, Justice Alito cited Conductor Generalis for the proposition that search incident to arrest was well established at the time of the ratification. So, this is an example of the kind of reverse engineering for the reading

00:42:42.050 - 00:43:04.050

that I was talking about earlier. I noticed that Conductor Generalis was mentioned as being very important. Um, so I searched Westlaw in journals and Law Review articles and Supreme Court cases to find citations to conductor Generalis that led me to the Thomas article and Birchfield. So

00:43:04.050 - 00:43:25.284

the quiz gave them a quote from Alito's opinion and asked them to find that known item first of all and asked them to explain how that historical evidence was being used in the legal argument and to critique. the evidence fit with the historical context. I hope

00:43:25.284 - 00:43:44.409

that they would recall reading in the Thomas article that Conductor Generalis was the only source that endorsed search incident to arrest and only in one edition. I also hope that the students would remember that Conductor Generalis was a really influential treatise. Ultimately, most students concluded that

00:43:44.409 - 00:44:04.510

Alito's reliance on Conductor Generalis was not improper, but his argument might have been somewhat overstated. So that's an example of the Era's quiz. We wanted to end our presentation by talking briefly about some of the lessons that we've learned teaching these courses and adjustments that we've

00:44:04.510 - 00:44:20.780

made as a result. So for me, the biggest thing is I wanted to use Canvas multiple choice quizzes to cut down on how much I would have to read and grade. Um, I thought that if I wrote good questions and allowed students to drop their lowest

00:44:20.780 - 00:44:38.479

quizzes, they wouldn't quibble about individual points. But no, have, have I met law students? Of course, you know, and any time that I gained using these multiple choice quizzes was lost fielding frantic emails from students who wanted to argue for a different answer. So next time,

00:44:38.860 - 00:44:59.060

I will ask fewer questions and make them essay questions so that the students can explain themselves. Um, I also received some good feedback from students that they needed more time practicing with databases other than Lexus and Westlaw. So, I'm, I'm excited, uh, to adopt the, um,

00:44:59.919 - 00:45:25.760

The historical, the Stevens Resource presentations in my course next time around to give students more focused opportunities to learn these databases. Um Yeah, uh, uh, having, even as I'm going through now the 3rd time teaching, um, a version of the course, I think the overall takeaway

00:45:25.760 - 00:45:45.040

that I've found is even so, my course is a 2 credits, so there's 30 hours of class time, and it's an advanced course, but it can only serve as a beginning. So I, I use the, the, uh screenshot here from Star Wars of They're entering into

00:45:45.040 - 00:46:10.979

a new world, a large new world. And so that's the thing that I have gradually adopted my course towards is I give them an introduction to that. I give them as many tools as I can to allow them to explore that in a responsible, ethical, legal,

00:46:11.580 - 00:46:32.729

All of those things that we go back to the information literacy question about. In those ways, but I can at least give them that introduction, and then when they have further questions, they will know, in addition, librarians are awesome. And when you have those additional questions,

00:46:33.020 - 00:46:53.199

come to us as, at the law school, at the law library, and when you have questions when you go out into practice. Exercise Your ability to access. Either the law firm librarian or the local librarian at a local university or a local law school or a

00:46:53.199 - 00:47:14.209

local uh public library, but this is the way that you can at least start to understand what it is that you're looking for and what you What help you need to be asking for when you uh require that. Additionally, the final assignment versions like Claire, um,

00:47:14.500 - 00:47:34.429

yeah, I, I've adjusted the final assignment a couple of different times, and It's a similar, um, uh, conclusion that the coursework, I, is not an end to itself. The first time I taught this course, um, they drafted a, a mock brief. Um, I don't know that

00:47:34.439 - 00:47:55.090

that really served the purpose because it seemed a bit conclusory of, oh, you've, you've drafted a brief, therefore, you've learned everything that you need to know. Um, and so this time around, I'm doing, um, A, uh, annotated bibliography. So the, the, the course itself is not

00:47:55.090 - 00:48:15.270

the end. Um, in fact, uh, one of the things that they can do is they can develop a Uh, bibliography for future research projects. Um, so they're able to work on that further. Um, and it's a matter of identifying what is it that students are going

00:48:15.270 - 00:48:32.770

to want to do, what is it that they are not going to, so I put here carrots and sticks, um, is make sure that they are actually learning the things that the course is designed to help them to learn. But also, students are students, and they

00:48:32.770 - 00:48:54.479

sometimes need a few sticks along the way to make sure that they do that. So the incentives and uh disincentives, um, and then general workload, um. ABA standards notwithstanding, students always complain about the workload, um, and so, um, I, I think where I've come down on

00:48:54.479 - 00:49:10.830

this is, you know what? I'm allowed to give you, in fact, I'm required to give you 2 hours of work outside of class. So that's gonna be the way, and if the other Professors in other classes do not do that. That's not my problem. That's their

00:49:10.830 - 00:49:29.310

problem. And so, um, but I, I also phrase it at the beginning as this is a course for you and I'm grading it as a course for you. Um, and so understanding where you are at, what you are needing, that's the way that I want to

00:49:29.310 - 00:49:49.750

frame this course, um, and if it's too much work for you and you don't wanna Deal with that That's, that's, that's something for you to, uh, deal with. Um, and then the, the last thing that I, uh, found was, um, um, dealing with because this is

00:49:49.750 - 00:50:15.370

such a new topic or a novel, um, set of discussions, uh, for many of the students who are having to adjust. Between all of these doctrinal courses, and now all of a sudden they're shifting into on a random Wednesday, um, this, so, this different mode of

00:50:15.370 - 00:50:33.669

thinking, um, one of the things I'm still thinking through is how to handle the time in the classroom, of to what degree should that be discussion about readings, to what degree should it be, um, Lectures because I want to make sure that they understand certain things,

00:50:33.850 - 00:50:55.969

and by lectures, I also hear mean uh demonstrations of uh uses, and to what degree should that time in the classroom itself be um exercises as opposed to um Uh, offloading that to between classes. I'm still not sure that I have a great grip on how

00:50:55.969 - 00:51:20.270

to make that balance, um, but it's something that I've definitely learned and adjusted, um, over the, uh, 3 iterations of the course so far. So I think we're now open to questions. Thank you so much. This was very rich. I have a whole page of my

00:51:20.270 - 00:51:43.350

own notes and questions, but instead I'm going to give priority to our folks in the Q&A. So the first question we have is, do either of you teach or discuss corpus linguistics, which seems like it is relevant to legal history. Uh, yes, I do. Uh, so

00:51:43.350 - 00:52:08.959

actually this past week was our session on corpus linguistics, um, and this coming week, one of my students will be presenting on one of the corpus linguistic databases or tools. Um, Um, And in the vein of what I'd already discussed before about the sort of critical

00:52:09.340 - 00:52:29.760

uh approach to this is I presented in a very neutral manner of this is a tool. This is a tool that has strengths and weaknesses, and here are readings that discuss some of the strengths and weaknesses. And so, if this is going to be something that

00:52:29.760 - 00:52:48.379

is a strength for your legal argument, here are the methods to use. Here are the ways to approach a legal corpus and the tools that are able to interrogate that legal corpus. If it's not going to be a tool that's useful for your client, Here are

00:52:48.379 - 00:53:11.449

the ways that you can point out the fact that it may not be the end all be all, um, And, uh, Yeah, it, it, it, it, it is, it is a Ostensibly objective way of approaching legal interpretation. That is maybe a bit different from like a

00:53:11.449 - 00:53:36.669

historical dictionary. But there are strengths and weaknesses to that, and um it's ostensibly that, um. I don't include anything about it. Um, just, you know, given the amount of time in the semester, I am recognizing the local interest in historical dictionaries. I took some extra time

00:53:36.669 - 00:53:57.750

to talk about historical dictionaries and also some extra time to have our special collections librarian come in and give them some hands-on opportunities to work with old materials. So it's just kind of a question of where you want to put the time. Thank you both. Our

00:53:57.750 - 00:54:21.129

next question from the Q&A, a question for both of you. What has this focus on historical methods taught you about modern legal research and instruction, and do you talk about legacy slash modern research infrastructure in your classes? I love that question. It has, it has caused

00:54:21.129 - 00:54:41.199

me to think so much more about how the scaffolding of online legal research is really the way the legal information was organized in the early 20th century and the way that once you know how things were organized in books, you can see the skeleton of it

00:54:41.199 - 00:55:03.610

even on something like Lexis and Westlaw and Um, which I think allows you to kind of engage a little bit more deeply with what's gained with how things have been disintermediated, um, But also what's been lost, and I was looking at the Delaware cases, this particular

00:55:03.610 - 00:55:24.544

reporter that came out in 1943, and it had all these different versions of cases based on different people's recollection of the cases. And when it was published in print, they did a wonderful job of providing all these like See also references explanations of how the cases

00:55:24.544 - 00:55:42.044

came from multiple different sources. When it's on Westlaw, all of that context was stripped away, and all that remains are these Delaware cases that if you don't know any better, they look just as good as anything else. So I think that that's one example of how

00:55:42.504 - 00:56:07.979

I've engaged differently with present day materials because of this experience. Yeah, I think, I think that's one thing I've also found is, um, The fact that um when you're dealing with sort of standard legal research through the standard databases, there's no difference between a case that

00:56:07.979 - 00:56:33.139

was decided a year ago and a case that was decided 150 years ago. And That's, that's it, it sort of flattens everything in a way that misses all of the context. That Um, one of the things I hope my students will understand is that A case

00:56:33.139 - 00:57:02.000

that was decided in 1874 or whatever. Came out of a particular context. And that is missing if all you're reading is the decision that you find through standard. Uh, legal research methods. And that is something that Needs to be understood. Um, because, uh, and it might,

00:57:02.169 - 00:57:20.159

it, it, both of us go back to, uh, English legal history, um, you know, we don't spend a whole lot of time on it, but it's the same thing. It's like England was a different country than America was, and it, is that important? Yes, no, maybe

00:57:20.159 - 00:57:42.439

so, but like understanding that context to know what was the state of property ownership and the understanding of property. Um, in 1540, that's gonna impact the way that you understand a court decision from the 16th century and how you use that, and it's not just a

00:57:42.439 - 00:58:05.790

matter of Saying, oh, my uh uh my shepherdization research says that this was overturned or distinguished or whatever. But it's, it's a matter of understanding, OK, well, what was that context? What was the historical context in which that was decided, and not just the legal context,

00:58:05.870 - 00:58:29.979

but all of these other things that um Uh, are in play and one of the, one item that um we discussed a couple of weeks ago was um the fact that in the mid-nineteenth century, there's a proliferation of printing because of certain historical Uh, for historical

00:58:29.979 - 00:58:47.810

reasons because paper all of a sudden became a lot cheaper, printing was a lot cheaper, and so now you've got a proliferation of information. So what do you do with that? Well, that also impacts the way that legal information, uh, is encountered and needs to be

00:58:47.810 - 00:59:17.060

understood, um, that You know, it, it, it's, it's just contextualizing everything in a way that a flat database doesn't really allow you to do if you aren't willing to, uh, really, um, look at and understand the information aside from just a, um, OCR document. Uh, we

00:59:17.060 - 00:59:33.139

have one minute left in our hour, and I've got a bunch of questions that I'm going to try to consolidate quickly. I don't want to keep either of you over time. How do you address research and resources that are not digitized and, and, or how do

00:59:33.139 - 00:59:52.639

your courses prepare students when it comes to databases that they're not going to have access to in a firm setting? Any thoughts on either of those two things as our closing question? Yeah, so I, I have a particular subunit, um, when we're looking at 19th century

00:59:52.639 - 01:00:10.429

stuff because this is when it really explodes as I was um just uh mentioning, um, of how to reach out to archives, how to reach out to libraries, how to, uh, make the contact and not assume that everything's gonna be digital. So we, we talk about,

01:00:11.010 - 01:00:31.280

um, that, that sort of archival, that sort of in-person library research, um, again, all in this interest of like, not assuming that everything's online, not everything is going to be in the one place that you are imagining you would look first. Absolutely. And I think one

01:00:31.280 - 01:00:53.199

of the, the skills that they can learn from the course is how to interact with librarians, archivists, um, and others who can, um, who can help them with their research and how to, um, be nice to us. A perfect answer, a perfect way to end. Thank

01:00:53.199 - 01:01:11.669

you both so much for this fantastic conversation. I'm very much looking forward to reading the paper when it is published, and you've given personally a lot of ideas that I'd like to germinate here in my own institution. So thanks everyone for attending. I'm going to, to

01:01:11.669 - 01:01:23.030

wrap our conversation here, and we just really appreciate your time and sharing so much of your work in this space. I do. Have a good afternoon. Thanks so much. Yeah, you too.